On 20 December 2022 in the Brisbane Magistrates Court, a construction company was sentenced for breaching section 32 of the Work Health and Safety Act 2011 (‘the Act’), having failed to comply with its primary health and safety duty pursuant to section 19(1) of the Act.
The defendant company operated a construction business, specialising in civil pipeline construction. It was the principal contractor for a civil construction project located in Woolloongabba, involving a sewer upgrade. The project required the excavation of several shafts. Due to the depths of the shafts, temporary supports (trench boxes) were required to retain and support the surrounding ground to prevent collapse. The work was hazardous given the unprotected edge of the excavated shafts, and the resulting risk of serious injury or death to persons from falls from ground level to the base of the excavated shafts.
On 5 November 2020, a 23-year-old construction labourer, employed by the defendant company, fell approximately 5-6 metres into an excavated shaft when attempting to dislodge a piece of concrete in order to allow the final trench box to be installed. The worker suffered fractured ribs and a fractured collarbone and was hospitalised for three nights.
The subsequent WHSQ investigation revealed that, while the defendant had a number of safety systems in place, including a Safe Work Method Statement (‘SWMS’) for ‘Working at Heights’ and various procedures which mandated the use of fall-restraint systems where workers were required to approach an unprotected edge, and that, prior to working at height commencing, verification of anchor points was required, these had not been complied with. Instead, no fall arrest equipment was used.
Following the incident, the defendant company revised a number of its safety controls, including updating inductions, producing a training video in relation to excavations, purchasing anchor restraints for workers to utilise harnesses and it also sought advice from a ‘Safety Consultant.’
In sentencing, Magistrate Quinn took into account the defendant company’s timely plea of guilty, noting however, that an early plea would have indicated a greater sense of remorse. His Honour had regard to the purpose of the Act and considered that the need to protect workers against harm to their health and safety from risks arising at work was paramount. His Honour noted that the fact the worker potentially put himself in harm’s way was not relevant to penalty nor did it discharge the defendant company of its duties. His Honour concluded that the Act required such compliance that workers were protected from themselves.
In determining culpability of the defendant company, His Honour remarked that the work undertaken posed an obvious and foreseeable risk of serious injury or death, and that insufficient attention had been given to ensure processes were followed. His Honour found that a travel restraint system should have been used, and that other safety procedures were not complied with, and that, if the defendant company had followed its own procedures, the incident would not have happened. His Honour also had regard to the serious nature of the injuries suffered by the worker and his inability to work for some time, noting the worker was fortunate to not have suffered any permanent injury. His Honour noted that specific deterrence in addition to general deterrence was of particular importance given the continuity of the defendant’s business.
In mitigation, His Honour took into account the post-incident measures implemented by the defendant company, together with its cooperation with the investigation, its lack of previous history, its otherwise proactive approach towards health and safety within the workplace and that it was a good corporate citizen.
In light of these factors, as well as comparable decisions referred to by the prosecution, His Honour convicted the defendant company and ordered a fine of $70,000 be imposed along with $1,601.40 in costs, all of which was referred to SPER. No conviction was recorded.
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Section 32 and 19(1) of the Work Health and Safety Act 2011